Medfusion, Inc. Subscriber and Services Agreement Terms and Conditions

May 1, 2008

This Subscriber and Services Agreement (this "Agreement") is an Agreement between Medfusion, Inc ("Company" or "Medfusion") and you ("Client" or "You") and includes the attached HIPAA Business Associate Addendum. By accessing or using the services offered by Company, including this website, you agree to be bound by the provisions of such notices, terms, and conditions. We reserve the right to update or change these Terms of Service at any time and for any reason by posting a revised version on this Web site. Pricing information is contained in specific Services Agreement Forms agreed upon by You. The date of the last update to these Terms of Service is stated at the top of this document.

The Company's services include providing software access and use to physicians and/or physician groups for secure patient to physician interfacing and communication (Medfusion Software). Those include, but are not limited to, 1) Patient Pre-registration; 2) Symptom Assessment 3) Online Medical History; 4) Appointment Requests; 5) Appointment Reminders; 6) Credit Card Processing; 7) Patient Bill Payment System; 8) Prescription Renewals; 9) Virtual Office Visits; 10) Secure Physician Portal; 11) Secure Patient Portal; 12) Personalized Domains; 13) Site Generator; 14) eCommerce; 15) Intranet; 16) Personal Health Record (PHR); 17) Kiosk; 18) Referral Portal; 19) Custom Form Builder; and 20) Virtual Card Swiper. You and the Company will agree to the specific services and transaction fees that apply to you in a Service Agreement Form that will be executed separately and incorporated herein.

1. Definitions. Capitalized terms not defined herein shall have the meanings ascribed to them in this Agreement. In addition to any other terms defined herein, the following terms will have the following meanings:
a. "Applications" means the applications set forth in this Agreement and Services Agreement Form which are included in the Medfusion Software.
b. "Authorized Users" means Patients, authorized and designated Practice staff and Physicians.
c. "Medfusion Software" means Medfusion's proprietary application software described on the Services Agreement Form and this Agreement, which includes the Applications and a custom interface developed by Medfusion at its discretion. The term "Medfusion Software" also includes any new software code provided hereunder, including, but not limited to updates, upgrades, enhancements and customizations to the application.
d. "Patient" means a person seeking health care and who, prior to using the Medfusion Software, has been determined by Client to have a patient-physician relationship with Physician or a Physician in the Practice in accordance with the applicable requirements of State law and of the applicable State licensure boards.
e. "Provider" shall be defined as a billable caregiver such as a physician, physician assistant, nurse practitioner, or therapist who is an employee, agent, or otherwise affiliated with Client.
f. "Practice" is a group of licensed physicians who as a group are agreeing to the provisions of this Agreement or a solo physician.
g. "Patient Pre-Registration" is a Medfusion service where patients can complete demographics, basic health and medical history via a web-based form prior to visiting with the Physician.
h. "Symptom Assessment" is a Medfusion service where patients can input a specific complaint and be guided through a series of questions whereby the Physician is presented with comprehensive patient documentation.
i. "Online Medical History" is a Medfusion service where Patients can enter standard health history such as family, social and surgical history.
j. "Appointment Requests" is a Medfusion service where Patients can request an appointment online.
k. "Appointment Reminders" is a Medfusion service where Patients are notified of an appointment time with a Physician.
l. "Credit Card Processing" is a Medfusion service where Patients' payments are processed via credit card.
m. "Patient Bill Payment System" is a Medfusion service where Patients can pay any outstanding balance to the Physician or the Practice online.
n. "Prescription Renewals" is a Medfusion service where Patients can request prescription renewals online.
o. "Virtual Office Visits" means an Internet based interactive medical consultation between a Physician and a Patient.
p. "Secure Practice Portal" is a Medfusion portal that allows the Physician or the Practice to communicate securely and confidentiality with their Patients and to administer the various features displayed on the website.
q. "Secure Patient Portal" is a Medfusion portal that allows the patient to securely communicate with Physicians and the Practice.
r. "Site Generator" is the Medfusion application for managing content on the Practice's website and controlling the staff access to the Secure Practice Portal.
s. "Protected Health Information" means (subject to the definition provided at 45 C.F.R. § 164.501) individually identifiable health information.
t. "Transaction Fee" or "Subscription Fee" means the fees charged by Medfusion to use the Applications.
u. "Personal Domain" means a url that includes the Physician's or the Practice's Name.
v. "eCommerce" is a Medfusion service that allows the Physician or Practice to securely sell items thru their website.
w. "Intranet" is a Medfusion service within the Secure Practice Portal that allows the Practice to store and share documents with all practice portal users.
x. "Personal Health Record (PHR)" is a Medfusion service that allows a patient to create a comprehensive online health record which can be shared and updated by the patient's physician.
y. "Kiosk" is a Medfusion service that allows patients to perform secure communications with their Physician in the Physician's office.
z. "Integration" is a Medfusion service that allows the data collected from the patients thru the website to be transferred into another software such as a Practice Management System or Electronic Medical Record via HL7 or a web service.
aa. "Virtual Card Swiper" is a Medfusion service that allows the Practice to accept a patient payment with or without a credit card present thru the Secure Practice Portal.
bb. "Referral Portal" is a Medfusion service where physicians can securely send and receive referrals from other physicians or facilities.
cc. "Custom Form Builder" is a Medfusion service where the Practice can create their own forms online to be completed by the patients thru the Secure Patient Portal.

2. Services and Use License.
a. Subject to the terms of this Agreement, Medfusion will provide Authorized Users with access to the Medfusion Software for the sole purpose of using the Applications. Medfusion shall be responsible for hosting and maintaining the Medfusion Software. The Applications and Medfusion Software are owned by Company and are licensed to you on a limited, revocable, non-transferable and non-exclusive license on the terms and conditions set forth herein. All rights not expressly granted to you are reserved by Company.
b. In addition to services provided herein, Medfusion offers email support and other professional services to Client subject to fees and terms mutually-agreed upon by the parties.
c. Client can store unlimited amounts of information in the Practice website. However, extra charges may incur for high bandwidth files such as videos, large graphics, PDF's, etc.

3. Authorized Users.
a. Only Authorized Users are permitted to access and use the Medfusion Software, and Client shall bear full responsibility for ensuring the same. Client is responsible for ensuring that each Authorized User's unique ID and password for the Medfusion Software (the "Medfusion Software Access Information") is kept secret and confidential. Client shall be responsible for any communications, transactions or use of the Medfusion Software that are made using the Medfusion Software Access Information. Client shall bear full responsibility for all acts and omissions of Authorized Users and non-Authorized Users to the same extent as if undertaken by Client itself.

4. Emergency Services. Client understands the Applications provide value and streamline the normal operations of a Practice and that the Applications are not designed for medical emergencies. Client agrees to inform its Patients that this service is not designed for emergency use.

5. Support and Training.
a. Medfusion shall provide commercially reasonably technical support to Client and Authorized Staff Users via email during Medfusion's regular business hours. You agree to keep this email address current, and hereby grant Medfusion permission to communicate with you using this email address. Upon Client's request, Medfusion may provide additional technical support at Medfusion's then current hourly rates, which may be amended from time to time. Client shall assist Medfusion in providing support to their patient users. Such assistance shall include, but not be limited to making Physicians and support staff available to Medfusion.
b. Medfusion will provide online resources to conduct reasonable training for Client's employees who will be using the Medfusion Software. Client will use all reasonable efforts to assist in the implementation and to make Physicians and staff available for training. Such training will be conducted via telephone and WebEx at a time and for a reasonable number of employees as determined by Medfusion in its discretion after consultation with Client. In no event will Client receive more than the number of hours of training specified in the order form. Client shall be responsible for all expenses it incurs in order for employees to attend the training sessions, including, but not limited to travel, accommodations, rental car, rented facilities or equipment used in training. On-site training is available to Client subject to fees and terms mutually-agreed upon by the parties. Contracts are available for live person support and training.

6. Restrictions; Limitations.
a. Medfusion will not systematically monitor the information and content which is disseminated via the Medfusion Software. Medfusion reserves the right, however, to (i) disable access to or delete any information that it determines in its sole discretion (such discretion to be exercised in good faith) to be illegal, obscene, threatening, harassing, unethical or otherwise offensive, and (ii) disable access to or delete any other information under justified exigent circumstances, as such circumstances are determined to exist by Medfusion.
b. Client agrees that if Medfusion is presented with a subpoena from any state or federal agency regarding any transaction recorded via the Medfusion Software that Medfusion will comply with said subpoena.
c. Client agrees that Medfusion shall have the right to terminate this Agreement or curtail the provision of Medfusion Software to Client or any particular Authorized User, without prior notice to Client, in the event that Medfusion determines that an Authorized User or Client abuses any of the services provided by Medfusion hereunder.
d. Medfusion may from time to time modify the Medfusion Software. All modifications or improvements relating to products or services provided by Medfusion under this Agreement are and shall remain the exclusive property of Medfusion.

7. Security; Privacy; Regulatory.
a. You and/or any other person on whose behalf you are acting in entering into this Agreement agree to use the Applications in a manner consistent with all applicable professional and ethical standards and requirements, local, state, and national laws and regulations, and otherwise in accordance with this Agreement.
b. Medfusion will use commercially reasonably efforts to secure information transmitted through the Medfusion Software.
c. Medfusion and Client agree that only appropriately licensed Physicians shall assess, diagnose, and recommend treatment for Patients. Client acknowledges and agrees that Medfusion is not engaged in the practice of medicine through the provision of the services contemplated herein. Prior to a Patient's use of the Medfusion Software, Client shall verify that such Patient has a patient-physician relationship with a Physician in accordance with the applicable requirements of State law and of the applicable licensure boards. You agree to be solely responsible for verifying the identity and authenticity of the patients who identify themselves to you and with whom you or your Authorized Users communicate. Neither party shall interfere with, control, or otherwise influence the physician-patient relationship established between a Physician and a Patient. Medfusion shall take all reasonable precautions to ensure that the Applications are provided in a manner consistent with applicable ethical and legal requirements. MEDFUSION SHALL HAVE NO OBLIGATION, RESPONSIBILITY OR LIABILITY FOR ANY PHYSICIAN'S PROVISION OF PROFESSIONAL SERVICES.
d. Nothing in this Agreement shall be construed as an offer for payment by one party to the other party or any affiliate of the other party of any cash or other remuneration, whether directly or indirectly, overtly or covertly, for Patient referrals or for recommending or for arranging, purchasing, leasing or ordering any item or service.

8. Marketing.
a. Medfusion hereby grants Client the nonexclusive right to promote the Medfusion Software provided to Client hereunder to Patients. Medfusion hereby grants to Client a nontransferable license to use its name, logo and trademark ("Medfusion Marks") solely for the purposes of promoting and advertising the Medfusion Software. Either separately or in conjunction with any Medfusion Mark, Client agrees to follow Medfusion's then-current trademark guidelines, if any, and to include any notices that Medfusion may request when using the Medfusion Marks. All Medfusion Marks shall, at all times, remain the exclusive property of Medfusion. All representations of Medfusion's name, logo and trademark that Client intends to use will be submitted to Medfusion for approval of design, color, and other details. All use of the Medfusion Marks shall inure to the benefit of Medfusion.
b. Client hereby grants to Medfusion a limited, nonexclusive, nontransferable license to use Client's name, trade names, trademarks, logo and service marks (collectively, the "Client Marks") solely in connection with the performance of this Agreement, including, but not limited to the right to display Client Marks on Medfusion's web site. Either separately or in conjunction with any Client Mark, Medfusion agrees to include any notices that Client may reasonably request when using the Client Marks. All Client Marks shall, at all times, remain the exclusive property of Client. All use of the Client Marks shall inure to the benefit of Client.
c. Client has and may exercise no authority to make statements or representations concerning the Medfusion Software that exceed or are inconsistent with the marketing materials, technical specifications and/or any other description of the Services provided to Client by Medfusion. Client agrees it shall not have any right or authority to accept any order or to assume or create any obligation, express or implied, on behalf of Medfusion. Medfusion shall not be liable to Client or prospective Authorized Clients for its failure to approve any prospective Authorized Users.

9. Payment of Fees By Patients. The Client shall set the prices that Patients will pay for use of the Applications. Medfusion will process and collect those amounts and on a monthly basis, remit them to you during the proceeding month. Medfusion will process each Patient's credit cards, and will use its reasonable efforts to ensure that Physicians provide services only to Patients who have been approved for payment.

10. Transaction Fees and Other Agreed Upon Costs.
a. Each month, Medfusion will invoice Client for transaction fees and other costs set forth in the Service Agreement Form for the preceding month. Along with the invoice, Medfusion will provide you with
i. a report summarizing the number of transactions and the revenue generated for You for the preceding month;
ii. the applicable Transaction Fees for the Applications, with a minimum of ¢.60 per transaction, unless otherwise stated.
iii. any other fees payable to Medfusion and
iv. the total amount due to Medfusion or remitted to you as the case may be.
b. Each month, 60 days in advance, Medfusion will invoice Client for the monthly hosting and access fee set forth in the Service Agreement form. For example, the January invoice will be for the month of March’s monthly hosting and access.
c. Unless otherwise indicated on the Service Agreement form any custom work will be billable at $145 per hour.
d. All invoices will be due and payable within thirty days from receipt by Client. Client will be responsible for payment of any sales, use, or other taxes arising from this Agreement, together with any related interest and penalties assessed by a taxing authority. All fees paid by Client are nonrefundable. Medfusion will assess an additional 1.5% (or the highest amount allowed by law, whichever is lower) per month late charge if any amounts are past due. Medfusion may terminate this Agreement or suspend the provision of services for failure of Client to pay any amounts due to Medfusion. Client shall reimburse Medfusion for all reasonable costs incurred by Medfusion in collecting past due amounts. Such costs may include, but are not limited to, wire transfer fees, collection agency fees, reasonable attorneys' fees, and court costs.

11. Medfusion Software Ownership. All right, title and interest in and to Medfusion Software are owned and retained exclusively by Medfusion. All right, title and interest in Medfusion Software, including all corrections, enhancements and modifications thereof, are reserved by Medfusion. Any information provided to Medfusion regarding new product or service offerings, corrections, enhancements and modifications to the Medfusion Software or related to the marketing and sale of the Services, shall be owned by Medfusion. Client may not possess Medfusion Software or install Medfusion Software at any third-party site. Client agrees not to reverse engineer, disassemble or decompile Medfusion Software or any part thereof; and not to remove the copyright, trade secret or other proprietary protection legends or notices which appear on Medfusion Software. Client agrees that it shall promptly notify Medfusion of and shall otherwise cooperate with Medfusion in preventing any unauthorized use or copying of Medfusion Software by Client's employees, agents, Clients or others.

12. Record Retention. Medfusion provides the ability to print appropriate patient information for storage in Patients' charts at the Client's office. Integration or interfacing of data is available on a contract basis at Medfusion's then current hourly rates.

13. Confidentiality.
a. "Confidential Information" means any information, other than Protected Health Information, received by one party (the "receiving party") from the other party (the "disclosing party"), unless such information: (1) was lawfully available to the public prior to receipt from the disclosing party; (2) becomes lawfully available to the public after receipt from the disclosing party, through no act or omission on the part of the receiving party; or (3) is approved in writing for release by the disclosing party. Notwithstanding anything herein to the contrary, it is expressly agreed between the parties that the following information will be deemed to be Confidential Information: the capabilities, technical descriptions and object code and source code (if any) relating to either party's released or unreleased software products or services; the marketing and promotion plans of each party's products or services; either party's financial information and business practices or policies; and each party's customer lists and customer information.
b. Each party agrees to maintain Confidential Information received from the other in confidence and neither use nor disclose such Confidential Information, without the prior written approval of the disclosing party, except as required to comply with any order of a court or any applicable rule, regulation or law of any jurisdiction, or as necessary to fulfill its obligations hereunder. In the event that a receiving party is required by judicial or administrative process to disclose Confidential Information of the disclosing party, it shall promptly notify the disclosing party if allowed by law and allow the disclosing party a reasonable time to oppose such process. Within each party, Confidential Information shall be disclosed only on a need-to-know basis. Each party shall protect Confidential Information of the other by using the same degree of care, but not less than a reasonable degree of care, to prevent unauthorized disclosure or use as that party uses to protect its own confidential information of like nature. The foregoing obligations shall remain in force for five (5) years following any termination or expiration of this Agreement, except that with respect to any Confidential Information in the form of source code the obligations shall continue for twenty (20) years following termination or expiration of this Agreement.
c. Upon termination or expiration of this Agreement, each party agrees to return all Confidential Information received from the other, at the request of such other party.

14. Client Material License. Subject to the terms and conditions of this Agreement, Client grants Medfusion a perpetual nonexclusive license to use, reproduce, distribute, transmit, modify, create derivative works of and publicly display information, data and other materials, excluding Protected Health Information, provided by Client or Authorized Users to Medfusion for incorporation into the Medfusion Software, only for the purpose of performing its obligations under this Agreement. Medfusion may use all information that it receives under this Agreement, including protected health information, to create de-identified aggregated information in compliance with the HIPAA Privacy Rule (45 C.F.R. Parts 160 and 164).

15. Disclaimer of Warranties. THE MEDFUSION SOFTWARE AND ANY OTHER SERVICES PROVIDED HEREUNDER OR IN CONNECTION WITH THIS AGREEMENT ARE DELIVERED "AS IS" AND MEDFUSION DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THE MEDFUSION SOFTWARE, THE PROVISION OF RELATED SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, COMPATIBILITY OR SECURITY. MEDFUSION DOES NOT WARRANT THAT ACCESS TO OR USE OF THE MEDFUSION SOFTWARE OR THE PROVISION OF OTHER SERVICES BY MEDFUSION WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ALL DEFECTS AND ERRORS IN ANY OF THE FOREGOING WILL BE CORRECTED, OR THAT THE FOREGOING WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. MEDFUSION DOES NOT PROVIDE ANY WARRANTIES REGARDING THE ACCURACY OF DATA OR INFORMATION PROVIDED BY THIRD PARTIES. The provisions of this Section allocate the risks under this Agreement between Medfusion and Client. Medfusion's pricing reflects this allocation of risk and the limitation of liability specified herein.

16. Indemnification. Client agrees to indemnify, defend and hold harmless Medfusion, their affiliates, officers, directors, employees, consultants and agents from any and all claims, liability, damages and/or costs (including, but not limited to, attorneys' fees) arising from Client's or an Authorized User's use of the Medfusion Software, Client's breach of this Agreement or Client's infringement, or infringement by any Authorized User, of any intellectual property or other right of any person or entity. Medfusion is not responsible, directly or indirectly, for any claims, causes of action, liabilities, damages and expenses (including, without limitation, attorneys' fees) arising out of or in any way related to any act or omission of a Provider or Authorized User that violates any legal, ethical and/or professional rule, regulation, issuance, guidance, standard or code of conduct when providing services via the Applications.

17. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, MEDFUSION THEIR SHAREHOLDERS, AFFILIATES, DIRECTORS, MANAGERS, EMPLOYEES OR OTHER REPRESENTATIVES SHALL NOT BE LIABLE TO CLIENT, AUTHORIZED USERS OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING REASONABLE ATTORNEYS' FEES AND LOST PROFITS) THAT RESULT FROM OR ARE RELATED TO THIS AGREEMENT, EVEN IF MEDFUSION HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, MEDFUSION'S AGGREGATE LIABILITY TO THE CLIENT UNDER THIS AGREEMENT FOR DAMAGES, COSTS, AND EXPENSES SHALL NOT EXCEED THE AMOUNTS RECEIVED BY MEDFUSION FROM CLIENT IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH DAMAGES. IN NO EVENT SHALL MEDFUSION, NOR ANY OF ITS SHAREHOLDERS, AFFILIATES, DIRECTORS, MANAGERS, EMPLOYEES OR OTHER REPRESENTATIVES BE LIABLE FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, WRONGFUL DEATH, LOSS OF USE, LOSS OF PROFITS, INTERRUPTION OF SERVICE OR LOSS OF DATA, WHETHER IN ANY ACTION IN WARRANTY, CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO NEGLIGENCE OR FUNDAMENTAL BREACH), OR OTHERWISE ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF, OR THE INABILITY TO USE, THIS WEB SITE OR ANY SERVICE OFFERED THROUGH THIS WEB SITE OR ANY MATERIAL OR INFORMATION CONTAINED IN, ACCESSED THROUGH, OR PRODUCTS PURCHASED ON THIS WEB SITE.

18. Term and Termination. Unless otherwise set forth on the Services Agreement Form, the term (the "Term") of this Agreement shall commence on the Effective Date and shall continue for an initial term of one (1) year. Or as otherwise set forth on the Services Agreement Form, this Agreement shall automatically continue for one or more renewal terms of one (1) year each, unless either party elects to terminate this Agreement upon written notice to the other party not less than sixty (60) days prior to the end of the renewal term. The client will continue to be billed for their monthly hosting, access and email fees at Medfusion's then current rates. Additional charges may include annual domain renewal, transaction fees, and 3rd party Patient Education content where applicable. Medfusion may terminate this Agreement immediately and without notice to Client in the event that: (i) Client fails to pay any fees, charges, or expenses when due; or (ii) Medfusion determines that Client or an Authorized User has breached any other covenant, representation, or warranty of this Agreement. Upon the expiration or termination of this Agreement for any reason: (i) Medfusion shall cease providing all or any portion of the Medfusion Software; (ii) Client and Authorized Users shall have no further right to use Medfusion Software and shall cease using all or any portion thereof and shall return all related documentation to Medfusion; (iii) all payments to Medfusion that have accrued prior to the termination or expiration of this Agreement will be payable in full within thirty (30) days thereof; and (iv) Client shall notify Patients of the termination of this Agreement. Sections 10, 11, 13, 15, 16, 17, 21 and 22 shall survive.

19. Force Majeure. Medfusion will not be responsible for delays or system downtime caused by strikes, lockouts, riots, epidemics, war, governmental regulations, fire, communication line or hardware failure, power failures, acts of God, or other causes beyond its reasonable control.

20. Strategic Relationships. Medfusion may enter into strategic relationships with third parties that may benefit Client by increasing Patient requests. In such an event, Medfusion shall be permitted to place appropriate links, icons or displays on the Client's website which is provided as part of the Medfusion Software. Although Medfusion may include links providing direct access to third-party Internet sites as a convenience, the inclusion of a link does not imply endorsement of the linked site by Medfusion. Medfusion does not take responsibility for the content or information contained on those other sites, and does not exert any editorial or other control over those other sites. Medfusion does not take responsibility for the privacy policies and practices of these third-party links.

21. Notices. Any notice, consent or other communication in connection with the Agreement shall be in writing and may be delivered in person by mail or by electronic mail. If hand delivered, the notice shall be effective upon delivery. If served by mail, the notice shall be effective three (3) business days after being deposited with the United States Postal Service by certified mail, return receipt requested, addressed appropriately to the intended recipient at the address set forth on the Services Agreement Form or to such other address as the party to receive notice so designates by written notice to the other.

22. Governing Law; Arbitration. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, without regard to the choice of law provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any contract dispute or claim arising out of, or in connection with, this Agreement shall be finally settled by binding arbitration in Raleigh, North Carolina, in accordance with N.C. Gen. Stat. § 1-567.1 et seq. (the "Uniform Arbitration Act") and the then current rules and procedures of the American Arbitration Association by one (1) arbitrator appointed by the American Arbitration Association. The arbitrator shall apply the law of the State of North Carolina, without reference to rules of conflict of law or statutory rules of arbitration, to the merits of any dispute or claim. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The parties agree that, any provision of applicable law notwithstanding, they will not request, and the arbitrator shall have no authority to award punitive or exemplary damages against any party. In the event that any arbitration, action or proceeding is brought in connection with this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorneys' fees. Notwithstanding the foregoing, nothing herein shall preclude either party from seeking injunctive relief in any state or federal court of competent jurisdiction without first complying with the arbitration provisions of this Section.

23. Severability. If any term of this Agreement is invalid or unenforceable under any statute, regulation, ordinance, or other rule of law, such term shall be deemed reformed or deleted, but only to the extent necessary to comply with such statute, regulation, ordinance or rule, and the remaining provisions shall remain in full force and effect.

24. Complete Agreement; Amendments. This Agreement, along with the Order Form and any exhibits hereto, constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. The Agreement may only be amended in writing, executed on behalf of each party.

25. Assignment. This Agreement may not be assigned, sublicensed or otherwise transferred by Client, whether by operation of law or otherwise, without Medfusion's prior written consent.

26. Authorized to Sign. The person signing this Agreement agrees that they have the authority to bind the Client and Medfusion is entitled to rely that the Client is so bound.

HIPAA BUSINESS ASSOCIATE ADDENDUM
TERMS AND CONDITIONS

Business Associate: Medfusion, Inc. ("Business Associate")
In consideration of the Parties' continuing obligations under the above-referenced agreement and related project, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Business Associate, as defined above, and Client, as defined above, hereby agree to incorporate in the above-referenced agreement between Business Associate and Client these Terms and Conditions (these Terms and Conditions and the above-referenced agreement are hereby collectively referred to as "the Business Associate Agreement"). These Terms and Conditions are effective as of the Effective Date specified above.

Capitalized terms used, but not otherwise defined, in this Agreement shall have the same meaning as those terms in the HIPAA Privacy Rule, the "Standards for the Privacy of Individually Identifiable Health Information", which is codified at 45 C.F.R. Parts 160 and 164.

Client is a "Covered Entity" within the meaning of the Privacy Rule. Client has or will disclose "protected health information" to Business Associate in connection with the services provided to Client, and Business Associate may become a "business associate" of Client under the Privacy Rule.

"Protected Health Information" or "PHI," as used in this Agreement, means (subject to the definition provided at 45 C.F.R. § 164.501) individually identifiable health information that Business Associate receives from Client or that it creates or receives on behalf of Client in connection with Business Associate's performing the services under this Agreement related to the project. These Terms and Conditions are intended to comply with the requirements for business associate agreements under the HIPAA Privacy Rule, and are to be construed to achieve compliance with those requirements. References in brackets, for example, "[45 C.F.R. § 164.504(e)(1)]," are references to the specific Privacy Rule provision that the specific provision below is intended to address.

1. Business Associate may use or disclose PHI only as permitted in Exhibit A attached hereto and incorporated herein by reference, except that Business Associate may use and disclose PHI for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate consistent with the provisions of 45 C.F.R. § § 164.504(e)(4)(i) and (ii). [§ 164.504(e)(2)(i)] Business Associate may provide data aggregation services related to the health care operations of the Client. [45 C.F.R. §164.501]

2. Business Associate will not use or further disclose PHI other than as permitted or required by this Agreement or as required by law. [§ 164.504(e)(2)(ii)(A)]

3. Business Associate will use appropriate safeguards to prevent the use or disclosure of PHI other than as provided for by this Agreement. [§ 164.504(e)(2)(ii)(B)]

4. Business Associate will report to Client any use or disclosure of PHI not provided for by this Agreement of which it becomes aware. [§ 164.504(e)(2)(ii)(C)]

5. Business Associate will ensure that any agent of Business Associate, including a subcontractor of Business Associate, to whom it provides PHI received from or created or received by Business Associate on behalf of Client, agrees to the same restrictions and conditions that apply to Business Associate with respect to such information. [§ 164.504(e)(2)(ii)(D)]

6. Business Associate will make available to Client PHI to the extent required under 45 C.F.R. § 164.524, which describes the requirements applicable to an individual's request for access to the PHI relating to the individual. The obligations of Business Associate in this Paragraph apply only to PHI in "designated record sets" in Business Associate's possession or control as such term is defined at 45 C.F.R. § 164.501. [§ 164.504(e)(2)(ii)(E)]

7. Business Associate will make available to Client PHI to the extent required for amendment and incorporate any amendments to PHI in accordance with 45 C.F.R. § 164.526, which describes the requirements applicable to an individual's request for an amendment to the PHI relating to the individual. The obligations of Business Associate in this Paragraph apply only to "designated record sets" in Business Associate's possession or control as such term is defined at 45 C.F.R. § 164.501. [§ 164.504(e)(2)(ii)(F)]

8. Business Associate will make available PHI to the extent required to provide an accounting of disclosures in accordance with 45 C.F.R. § 164.528, which describes the requirements applicable to an individual's request for an accounting of disclosures of PHI relating to the individual. Business Associate agrees to document such disclosures of PHI and information related to such disclosures as would be required for Client to respond to a request by an individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. § 164.528. [§ 164.504(e)(2)(ii)(G)]

9. If Business Associate receives a request, made on behalf of the Secretary of the Department of Health and Human Services, that Business Associate make its internal practices, books, and records relating to the use and disclosure of PHI available to the Secretary of the Department of Health and Human Services for purposes of determining Client's compliance with the HIPAA Privacy Rule, then Business Associate will promptly comply with the request; provided, however, that this provision shall not apply in the event a court of competent jurisdiction determines, in response to a challenge raised by Client, that the Privacy Rule provision requiring the inclusion of this provision in the Terms and Conditions is unenforceable or invalid.

10. Client shall not request Business Associate to use or disclose PHI in any manner that would not be permissible under the Privacy Rule if done by Client.

11. Client shall not disclose PHI to Business Associate except as permitted by law.

12. Client shall provide Business Associate with the notice of privacy practices that Client produces in accordance with 45 CFR § 164.520, as well as any changes to such notice.

13. Upon Client's knowledge of a material breach by Business Associate, Client shall provide an opportunity for Business Associate to cure the breach or end the violation. If Business Associate does not cure the breach or end the violation within the time specified by Client, the Client may terminate this Agreement. If Business Associate has breached a material term of this Agreement and cure is not possible, Client may immediately terminate this Agreement. [§ 164.504(e)(2)(iii)]

14. Upon termination of this Agreement for any reason, if feasible, Business Associate will return or destroy all PHI received from Client or created or received by Business Associate on behalf of Client that Business Associate still maintains in any form and retain no copies of such information. If such return or destruction is not feasible, Business Associate will extend the protections of this Agreement to the information retained and limit further uses and disclosures to those purposes that make the return or destruction of the information infeasible. [§ 164.504(e)(2)(ii)(I)] This provision shall apply to PHI that is in the possession of subcontractors or agents of Business Associate.

15. The Term of these Terms and Conditions shall terminate when all of the Protected Health Information provided by Client to Business Associate, or created or received by Business Associate on behalf of Client, is destroyed or returned to Client, or, if it is infeasible to return or destroy Protected Health Information, protections are extended to such information, in accordance with the termination provisions in these Terms and Conditions.

16. These Terms and Conditions are intended for the sole benefit of the Business Associate and Client and do not create any third-party beneficiary rights, except to the extent that the Privacy Rule validly requires the Secretary of the Department of Health and Human Services or any other person to be a third party beneficiary to this Agreement.

17. These Terms and Conditions cannot be amended except by the mutual written agreement of Business Associate and Client.

18. In the event that any provision of these Terms and Conditions is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the provisions of this Agreement will remain in full force and effect. In addition, in the event a party (Business Associate or Client) believes in good faith that any provision of the Terms and Conditions fails to comply with the then-current requirements of the HIPAA Privacy Rule, such party so shall notify the other party in writing. For a period of up to thirty days, the parties shall address in good faith such concern and shall amend the terms of this Agreement, if necessary to bring it into compliance. If after such thirty-day period these Terms and Conditions fail to comply with the HIPAA Privacy Rule with respect to the concern(s) raised pursuant to this Paragraph, then either party has the right to terminate this Agreement upon written notice to the other party.